Pacific Crown Helicopters Pty Ltd v Helistar Aviation Pty Ltd
[2017] QDC 321
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- Unreported Judgment
- Pacific Crown Helicopters Pty Ltd v Helistar Aviation Pty Ltd[2017] QDC 321
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Pacific Crown Helicopters Pty Ltd v Helistar Aviation Pty Ltd[2017] QDC 321
Pacific Crown Helicopters Pty Ltd v Helistar Aviation Pty Ltd[2017] QDC 321
DISTRICT COURT OF QUEENSLAND
CITATION: | Pacific Crown Helicopters Pty Ltd v Helistar Aviation Pty Ltd [2017] QDC 321 |
PARTIES: | PACIFIC CROWN HELICOPTERS PTY LTD (plaintiff) v HELISTAR AVIATION PTY LTD |
FILE NO/S: | D1137/2017 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 22 December 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 November 2017 |
JUDGE: | Richards DCJ |
ORDER: | The application for delivery up of Engine 220 is refused. Application pursuant to UCPR r 250 for inspection of the engine is allowed. The defendant will make Engine 220 available for inspection by the plaintiff and/or an expert appointed on the plaintiff’s behalf at a time and place to be agreed between the parties. Failing agreement each party has liberty to apply on 2 days’ notice. |
CATCHWORDS: | CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – where the agreement is partly in writing and partly oral – whether the oral agreement forms part of the contract Uniform Civil Procedure Rules 1999, r 292, 293, 250 Deputy Commissioner of Tax v Salcedo [2005] QCA 227 |
COUNSEL: | Mr J Ward for the plaintiff |
SOLICITORS: | Cleary Hoare, solicitors for the plaintiff |
- [1]This is an application by the plaintiff for delivery up and possession of an Arriel 1B helicopter engine described as Engine 220 leased to the defendant pursuant to a written agreement dated 2 April 2014. Despite demand on 16 June 2015 and since the defendant has refused to return Engine 220 to the plaintiff. In the alternative the plaintiff seeks delivery up of Engine 220 pursuant to UCPR r 250 for the purpose of inspection of the engine with a view to having an expert report prepared as to any issues relating to the engine whilst in the possession of the defendant. It is submitted that such a report is required for the trial of these proceedings as it may form the basis of a claim for damages. At the hearing of this application leave was given without objection to file an amended claim in the proceeding reflecting the relief pleaded in its amended statement of claim filed 2 February 2017.
- [2]The ownership of the engine in this case is not in dispute.
- [3]The defendant operates helicopters in South Australia and required one of its engines, Engine 679 to be inspected and repaired following a hot start in early 2014. Mr Dinan from the defendant company made enquiries to find a party to carry out the inspection and repair of Engine 679 who could also provide a loan engine for the duration of the inspection and repair period. He enquired with Eurotech in the United States (original sales people for Engine 679) and they referred him to the plaintiff. The defendant spoke to the plaintiff on 2 April 2014 and it was agreed that the engine would be delivered to them to complete the inspection and repairs. In return it was agreed that they would lease Engine 220 while the inspection and repairs were taking place and that the loan engine would be returned upon return of the primary engine (679). As a result of those conversations Engine 679 was delivered to the plaintiff and Engine 220 was delivered to the defendant. A lease document for Engine 220 was signed by both parties. (The lease document does not mention that the loan engine would be held by Helistar until the primary engine was returned.) The defendant further claims that on or about 29 June 2015 there was a further conversation where the plaintiff verbally agreed to terminate the engagement on the basis that the plaintiff would return the primary engine to Helistar with the inspection and repairs completed but not other work performed, that the defendant would pay the plaintiff for the inspection and repairs but not other work and then the engines would be exchanged.
- [4]Essentially the plaintiff’s case is that the written agreement supersedes any informal discussions that took place before the written agreement was signed and that the terms of the written agreement are clear. The defendant has not paid any rent on the engine since October of 2014 and retains the engine. In light of there being no dispute as to the ownership of the engine the plaintiff submits that the engine should be returned as there is no defence to its retention.
- [5]The defendant claims that the lease agreement on the loan engine was merely a part of the larger engagement and/or agreement which entailed the plaintiff organising the repairs and inspection of their engine, the lease of the Engine 220 for use while that engine was being repaired and then the exchange at the end of the repairs. The defendant submits that because the original engine was never returned they are under no obligation to return the loan engine. They claim a lien over the loan engine until they have the return of their own engine. It is submitted that the arrangement was both oral and in writing.
- [6]The plaintiff seeks summary judgment on the single issue of the return of the engine. To obtain summary judgment the court must be satisfied that the defendant has no real prospect of defending the claim and there is no need for a trial of the claim. The plaintiff bears the onus in the application. The law is set out in r 292 and 293 of the UCPR. The applicant referred to the Deputy Commissioner of Tax v Salcedo [2005] QCA 227. Williams JA in that case noted:
“That review of the authorities clearly establishes to my mind that there has been a significant change brought about by the implementation of r 292 and r 293 of the UCPR. The test for summary judgment is different, and the court must apply the words found in the rule. To use other language to define the test (as was contended for in this case by counsel for the appellant relying on the reasoning of Chesterman J in Gray v Morris) only diverts the decision-maker from the relevant considerations. But, and this underlies all that is contained in the UCPR, ultimately the rules are there to facilitate the fair and just resolution of the matters in dispute. Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine the respondent to the application has established some real prospect of succeeding at a trial; if that is established then the matter must go to trial.”[1]
- [7]A review of the pleadings and the evidence suggests that there is some dispute over the terms of the agreement and that at the very least there may have been a collateral agreement post the written agreement that the loan engine be retained until the return of the primary engine and in those circumstances it seems to me inappropriate to grant summary judgment.
- [8]There is the alternative request that an order be made under r 250 for delivery up of the engine for the purpose of inspection of the engine with a view to having an expert report prepared. Rule 250 provides:
“(1) The court may make an order for the inspection; detention; custody or preservation of property if –
- (a)the property is the subject of a proceeding or is property about which a question may arise in a proceeding; or
- (b)inspection of the property is necessary for deciding an issue in the proceeding.
…
- (3)The order may authorise a person to do any of the following –
- (a)enter a place or do another thing to obtain access to the property …”
In considering that rule the plaintiff has relied on Evans Deacon Pty Ltd v Orekinetics Pty Ltd [2002] 2 Qd R 345, His Honour Justice Chesterman as he then was stated:
“The discretion conferred by the rule is a wide one. It should not be limited by the superimposition of conditions not found in the rule itself. The order should not be made unless, on the material before the court, it is proper to do so. It must be remembered that the rule exists to promote the efficient and economical conduct of litigation. If the result of an inspection would tend to bring about such a result that discretion should, I apprehend, ordinarily be exercised in favour of inspection subject to there being some counter-vailing circumstance. To say that there must be formidable grounds for alleging an infringement before inspection will be ordered is to say only that there must be sufficient grounds for making the order. I do not think there is any benefit in using any more particular or pejorative adjective. It is no doubt true that an order for an inspection of property will not be made unless there is some evidence that the plaintiff’s rights are being infringed and that an inspection will facilitate proof of the claim. This, I expect, is all that is meant by saying there must be a substantial and genuine dispute. There are, of course, degrees of suspicion as well as of proof. It is pointless to resort to semantic differences and refuse inspection where there is ‘mere suspicion’ of an infringement, but allow it where there is ‘strong suspicion’ or ‘proof’ of it, even if the proof be weak. The discretion conferred by UCPR 250 should be addressed by considering whether in all the circumstances of a particular case the plaintiff has shown sufficient grounds for intruding on the defendant’s property.”[2]
- [9]In this case the defendant has raised the prospect of a lien being taken over the engine because the engine was loaned on the basis that their engine would be returned before the other was due to be handed over and this has not incurred. It is argued effectively that the agreement was only partly in writing and partly oral and that the lease of the engine was simply a part of the whole of the agreement. In those circumstances it does not seem to me to be an appropriate case where there should be order for delivery up and possession of the helicopter. However, pursuant to UCPR r 250 it does seem appropriate that the plaintiff have an opportunity to inspect the engine with a view to having an expert report prepared as to any issues relating to the engine whilst in possession of the defendant. Such report would be relevant to any damages and particularly the loss to the plaintiff by the retention of the loan engine.
- [10]Finally the defence have submitted that the claim does not sufficiently plead delivery up of the engine. I cannot agree with this proposition. The Statement of Claim has alleged that the defendant in breach of the agreement has refused to return the engine to the plaintiff (at paragraphs 9.2.2 and 11), and delivery up of the engine (at paragraph 12.10). There is no substance in this submission.
Order
The application for delivery up of Engine 220 is refused.
The application pursuant to UCPR r 250 for inspection of the engine is allowed.
The defendant will make Engine 220 available for inspection by the plaintiff and/or an expert appointed on the plaintiff’s behalf at a time and place to be agreed between the parties.
Failing agreement each party has liberty to apply on 2 days’ notice.